Business Musings: My Agent Will Negotiate (Contracts/Dealbreakers)

You’re a divorce attorney with more that thirty years experience. You charge hundreds of dollars per hour for your expertise. You have what seems to be a relatively easy divorce on your hands. After all, the client has told you that he and his soon-to-be ex-wife agree on the terms. They simply need you and her attorney to hammer out the details.

It’ll take a few hours, but not much more than that.

So, not a lot of money for your law firm, but enough to cover your time.

You head to the conference room where you agreed to meet the wife’s attorney. And, instead of the named partner whom the wife claims is her attorney, you find a fresh-faced twenty-one year-old with a stack of papers and a laptop in front of her.

Newly graduated from college with an English degree, this twenty-one year old got a job as a coffee-fetching assistant to the Big Name Lawyer. The twenty-one year-old has never even sniffed at law school. She graduated from college with her BA in May. This is August.

You ask where Big Name Lawyer is, only to be told that he’s on vacation and unreachable for the next two weeks. He has asked the twenty-one-year-old to handle this very simple case for him.

The scenario has to stop here because, in the real world of attorneys, what Big Name Lawyer has done would get him called before the bar and, depending on his clout, either disbarred or reprimanded severely. There would be serious and public consequences for sending a young person with absolutely no legal experience and no guidance to represent a client in a legal matter.

In the world of literary agents, however, such things are common.

In fact, I just dealt with a similar scenario on one of the anthology projects I’ve been working on.

Please note: To protect the stupid and to keep this somewhat confidential, I am publishing this blog weeks, maybe months, maybe years, after the negotiations. And, I’ll wager, I’ll run across this scenario several times before this blog gets published. (In fact, I have. I am now keeping count. I’ve run into lesser versions of this a total of eleven times since I experienced the events described below.)

Anyway, what happened was this: Super Big Name agent, the name on the door of the agency, went on a month-long vacation after I contacted him requesting permission to reprint a short story. He left the negotiations in the hands of his brand-new assistant, a young woman who had just graduated from college with—you guessed it—an English degree.

To her credit, the young woman was conscientious and did her very best. I would hire her in a heartbeat—as a receptionist, or maybe, in data entry, or as a file clerk, with the hope that she might learn how to be a professional something or other some day. She was sincere and hard-working.

She tried hard to negotiate a contract she did not understand at all. She asked me, the person on the other side of the desk from her, the person on the opposite side, why the contract I had sent (a standard short story contract with a freelance editor) was only one page long, instead of the 25 pages like all the other contracts she saw from the same publishing house.

I had to explain to her that she was looking at book contracts from a publisher. I was a freelancer and as such, I had the 25-page long contract with the publisher. I was simply contracting for the reprint rights to one short story. Me. Just me. And if the project went south from the book publisher, I could take the contents and move to another publisher.

I cringed as I sent that email, wondering if I would have to explain the word “freelance.” But, good English major that she was, our recent college graduate knew how to look up words in the dictionary, and she understood “freelance.” She didn’t understand any of the rest of it, although she gamely tried to negotiate the contract—asking for all the wrong things, for the wrong reasons, and, if she had prevailed, hurting Big Name agent’s client substantially.

Fortunately for her, I had ran out of patience about two weeks into Big Name agent’s vacation and copied him on an email that I sent to her, an email that included the entire unbelievably stupid thread.

Note that Big Name Agent isn’t a lawyer either, and has no right to negotiate a contract for anyone. He too is practicing law without a license. Me, I was representing myself, so I could get away with handling the negotiations on my own. (Just like I could in court, if I were stupid enough to try. And also note that a lawyer looked over the short story contract before I ever started using it.)

Big Name Agent immediately took over the negotiations—or, rather, sent a curt letter to both me and the assistant saying everything was just fine. If he had actually been doing his job, he could have fine-tuned the contract. At least five other parties in the same anthology had done so—most of them authorsrepresenting themselves.

Because, you see, I issued a contract that was good for both parties, but the contract did favor me. Because I issued it. I was perfectly willing to negotiate a few points—and did, but only if asked.

In other words, Big Name Agent did a terrible job all by his little lonesome, even if you take the recent college graduate out of the picture.

Realize that the client had no idea this was going on. (My next step, if the Big Name Agent hadn’t responded, would have been to send a third e-mail copying the writer as well as the Big Name Agent.) The client still doesn’t know. Maybe if I ever see the client in person, and I feel comfortable discussing it, I’ll mention something.

Or not.

Because it’s not my job to say anything. It’s none of my business.

But here’s the reality of the situation:

Famous Writer hires Big Name Agent for his so-called expertise, to handle all aspects of Famous Writer’s career. Famous Writer believes Big Name Agent will do a fantastic job at all times, keeping Famous Writer’s interests in mind.

Instead, Big Name Agent sends a recent college graduate with no knowledge of the business at all to represent Famous Writer in a legal matter.

It’s against the law in all fifty states to practice law without a license. So not only is Big Name Agent breaking the law, not only is Famous Writer getting cheated by Big Name Agent (with a bait-and-switch), but Big Name Agent is asking a young naïve recent college graduate to break the law in order to do her job. And I’ll wager she has no idea she did anything illegal when she negotiated with me on behalf of the agency’s client.

I felt for the recent college graduate. I really did.

I thought Famous Writer was unbelievably dumb to have an agent handle a short story. (Big Name Agent’s cut would have been barely in three figures.)

I have known Big Name Agent for over two decades now, since he began his career with another agency. I thought he was a stupid asshole back then. I think he’s a more polished version of the same stupid asshole now.

Yeah, yeah, those of you with agents are thinking, That would never happen to me. I’m pretty sure it has happened to you. Big Name Agent was training his assistant just like he had been trained thirty-some years ago. I know agent after agent after agent who dump their assistants on small tasks that aren’t “worth” the agent’s time. Often those small tasks include contract negotiation for “small” (meaning “not lucrative”) projects.

But you writers with agents, you’re sure, you’re positive this has never happened to you.

So, let me ask you:

How do you know? Do you know who does the actual negotiations of your contracts with your publishers? Have you asked your agent?

Who handles his business while he’s on vacation? What does his assistant actually do?

Does your agent negotiate your contracts or does the agency have a legal department filled with lawyers? (Most don’t. They have a legal department filled with assistants who are ordered to call the [single] lawyer on retainer only when necessary.)

Some time ago, I wrote a post on something else that mentioned in passing that I would never ever ever recommend that a new writer hire an agent any more. Many traditionally published writers shared the post, but disagreed with me on agents.

And every single traditionally published writer said this: I can’t sell my book without my agent. No editor will look at a book without an agent.

Or the 2016 variation:

I can’t sell foreign rights without my agent. No foreign publisher will look at a book if it’s not presented by an agent.

Neither of these things are true.

But pretend they are true. So, do this, traditionally published writers. Hire an agent to sell your book. Pay that damn agent a flat fee for doing so, not 15% for the life of the copyright. Then hire a lawyer to negotiate the contract. A lawyer who specializes in intellectual property.

Because the traditional publishing house has lawyers draft the contract you’re negotiating. The traditional publishing house has lawyers negotiate the contract with your agent. Those lawyers work for an international conglomerate. Those lawyers draft and negotiate book contracts and auxiliary rights contracts every day. Those lawyers specialize in getting the best deal for their employer, the international conglomerate. Not for the publishing arm. For the conglomerate. The entire big huge company.

You, traditionally published writer, have an English major at your side. Yes, that English major might have 25 years in the business, but he’s still an English major with zero legal training.

Zero.

Your agent, the English major, is going up against experienced corporate lawyers who know that changing one word in a contract—one word—can change the meaning of the entire contract. I mentioned that to one Big Name Agent a few months ago, and she laughed at me.

That’s a myth, she said.

I just about fell out of my chair. And because I couldn’t believe she actually believed that, let alone spoke that phrase aloud, I said, So you have an attorney handle your contract negotiations, right?

Oh, she said, we have one on retainer. I don’t use his services that often. Once the boilerplate is negotiated, there isn’t much more for him to do.

This woman handles millions of dollars in client book deals. And she knows almost as little as our friend, the recent college graduate.

Have I put the fear of agents into you yet?

There is no reason to hire an agent to represent your work in 2016. None. No reason at all.

Not even to sell your book. Because you can do it. And then you can hire a lawyer, who will charge you a flat one-time fee, not 15% for the life of the copyright, to legally negotiate your contract for you.

Get your head out of the sand.

If you listen to me about nothing else, hear this: Hire a lawyer to handle all your legal negotiations.

Hire a lawyer.

Just like you would if you were heading to court.

Because you might someday. Lots of writers do. They go up against their publishers. I know of three writers who contacted me about their court cases in the past six months. None of those cases made the publishing news outlets. And that doesn’t count all the writers who threaten a suit against their publishers.

Hire a lawyer.

Stop thinking agents will save you.

Learn the publishing business as it is in 2016—not as it was in 1986.

Because you’re getting screwed if you don’t learn how to be a 21st century business person.

And the sad thing is this: Like Famous Writer, you have no freakin’ idea what’s going on with your career.

None.

In two weeks or so, we will discuss how to hire an attorney. I have one more thing to say about agents before that. Since I’m waiting with the attorney post, however, let me just say this one thing:

People, you have to stop being afraid of attorneys. Despite what you hear in the media, they’re not terribly expensive or horrible people. They’re good at what they do…and we will discuss that later this month.

In the meantime, please share this post with all of your traditionally published friends.

And if you feel like you’ve learned anything or if you value what I’m doing here, please leave a tip on the way out. Thanks!

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“And every single traditionally published writer said this: I can’t sell my book without my agent. No editor will look at a book without an agent.

Or the 2016 variation:

I can’t sell foreign rights without my agent. No foreign publisher will look at a book if it’s not presented by an agent.

Neither of these things are true.”

I believe you’re right, but I don’t know how. As a new writer who has published two novels myself, how do I reach out into the traditional publishing world for my next series? How do I submit to an editor? Just via email as an unagented submission? Or through meeting people at writer’s conferences? Or something I haven’t even considered yet? What are my options if I don’t want an agent (because, honestly, you’ve convinced me that I don’t)?

And, since you mentioned it, how do I sell foreign rights without an agent?

Is there a blog post I’ve missed about that? I really value the insight and knowledge you bring to the topic. Thanks!

You’re not the first person to ask this, Annie, and I’ve answered it below. Looks like I’ll need to do a foreign rights post again. The short answer is that they will come to you. You can also submit stuff to foreign markets, because that’s all the agents are doing, and not very well.

As for selling into traditional without an agent, as I’ve been saying in these comments, I don’t really believe anyone should go traditional with novels right now, given the contracts. But if you really want to, Dean has an entire book (which you can also find online) on traditional publishing which should answer some of your questions: http://www.deanwesleysmith.com/killing-the-sacred-cows-of-publishing/

I’m confused. You say that you can sell your own book, while using a short story example to back this up. I’ve looked heavily into selling my own book to publishers.
1) The vast majority of big and upper independent publishers (heck, even mid-range) do not look at unagented submissions. They often say this explicitly on their websites, or don’t list submission info at all.
2) The few that do take months to sift through the slush, likely not giving each one as much attention, while agents receive answers within days or weeks.
3) I’ve sold lots of short fiction and it is easily done on your own. Novels are nothing like that.

I’ve sold most of my books without the aid of an agent, JC. I’m not sure you’ve read my bio, so you might not know how many books I’ve written and published over 30 years.

Yes, novels are different, and yes, you must wait for months, if you go traditional. I’m not sure why anyone would go traditional with novels these days, given the contracts and the downsides. So I’m not going to give tricks of the trade. I have in older posts, dating back 5 years on this site.

Most places will not look at unsolicited submissions. Get the publisher to solicit. Learn query letters and how to go to conferences to sell your book yourself, if you want to go traditional. Many, many, many professional writers do not have agents. You just have to figure out how to be one of them–and I won’t teach that here because I don’t believe anyone should sign current traditional publishing contracts for novels right now.

As for foreign rights, the publishers often come to you (or your agent). Better that you negotiate the deal. Very few agents actively sell foreign rights. They usually just vet the deals, which is a whole different thing, and too complicated to go into here.

This is a business. You need to learn all aspects of it, including selling your own work.

Whoops! My bad and my apologies. I did read the blog, but obviously misread it.

My apologies for the inappropriate comment.

I agree completely with your overall point. But, frankly, I can’t even imagine a big law firm doing what you’re suggesting. That’s what young associates (aka, less expensive lawyers) are for. And that would be the unauthorized practice of law, on top of everything else.

So … serious answer. Don’t even bother with an agent who isn’t an attorney, if you want an agent at all.

This is so interesting. When I was querying agents, one of the main reasons I did so because I figured if I had an agent, I’d have a professional who knew what they were doing in negotiating contracts and such. But as I am now learning, that’s pretty much not true, and I’m becoming very glad that none of them made an offer to me.

You are absolutely right about the need to carefully review and revise contracts. A lawyer drew it up and you need your own lawyer to make sure you know what every word and clause in it means because you are legally binding yourself by its terms. So is the other side. It is silly to think the other party to a contract is looking out for your interests when they might not know what they are.

Lawyers are great help, especially if you find a good one. They understand the pitfalls you may not see. Thay can put into the right words the things you want said. A really creative one can put in language that protects you more than legally. Van Halen had the no brown M&Ms clause in contracts as a safety measure. If they saw brown ones the venue had not read the contract thoroughly and the band had to do more thorough safety checks.

I worked on many public debt offerings that involved many legal documents. The ones who have to live with the contracts, the borrower and the trustees, are the ones who rarely read them. Underwriters just want to sell the bonds. Trustees just want the account. Buyers want to know if you have the financial strength to repay. For example, No one but the borrower cares about financial report formats (everyone should care about the contents),but having to produce a different format for every borrowing would be a big pain for the accounting department. I would constantly propose wording changes favorable to my administrative staff and to give us flexibility. They were rarely commented upon. We’d even put in some just to see if anyone was paying attention, making our attorney’s eyes roll. Once I put a knock-knock joke in the middle of a draft trustee agreement, just to prove to our lawyer that prospective trustees wouldn’t notice. No firm commented on it in the proposals submitted to be our trustee. At our lawyer’s insistence, we took it out of the final agreement. We left in the clauses giving us the right to choose the individuals assigned to our account, because an unresponsive person can cause real problems over the 20-30 year life of a public debt.

Any contract you sign is yours and you should take ownership of it and responsibility for it. Don’t sign anything if you don’t understand the current and future implications of every clause. You can give up a lot for nothing with a few pen strokes.

Kris, you and Dean are fighting decades of indoctrination. A year or two ago, I was in a writers group, when someone said they had just finished a book. After all the congratulations, the advice given to her was : “Now, get an agent.”

I shared some of the blogs you and Dean had written, but was surprised to hear everyone had read them. The advice still was: Get. An. Agent.

When I asked how they could recommend agents if they had claimed to read your and Dean’s blogs, the reply was something like: Yeah, but they are like celebrities, hanging out with Tom Cruise and Nicole Kidman, their advice won’t apply to common folk like us.

I quit that forum, and most writers forums after that.

If you go against people’s worldview, they just close their eyes and go “Lalalalala, I can’t hear you.” 🙂

“If you go against people’s worldview, they just close their eyes and go “Lalalalala, I can’t hear you.””

This is true for many things in life. Just because things are “the way things are done” doesn’t make it right (or right for you). Always good to question an examine such things. You might decide (maybe very quickly) that they are right, but then again, you might not.

I work in the marketing department of a BigLaw firm (I am not a lawyer myself). I want to add something to this sentence:

Then hire a lawyer to negotiate the contract. A lawyer who specializes in intellectual property.

Not just intellectual property, but specifically knowledgeable in the law regarding publishing. We have many IP lawyers in our firm and, while I would hire them instantly to represent me for a patent on a medical device I designed or some other technology, I would not hire them to negotiate my publishing contract. It’s not their area. They would probably be willing to do it, but I would look for someone with more specific experience in publishing.

Incidentally, when you are looking for a publishing lawyer, they may not say on their website or in their biography they have “expertise” in IP law or “specialize” in IP law. Our lawyers are not permitted to use those specific terms as some states do not allow attorneys to say they are “experts” or have “expertise” or “specialize” or are “specialists” in an area of law–those specific words–in advertising, which includes websites and brochures and other collateral material. (Because who says they are experts? It’s too subjective.) We get around it by saying they have experience, extensive experience, significant experience. That is acceptable ethically. They have experience, or they don’t. It’s not subjective language. So that’s something to keep in mind. 🙂

Some of the best advice I ever got was from my parents’ BFF (a lawyer who ran his own big escrow company).

He said “Always have your own lawyer.”

It saved me from the fallout of an ill-advised venture. It saved me thousands of dollars when I bought my house. It got my parents’ estate settled with a minimum of hassle (which is still a lot). And it netted me a good settlement without having to go to small claims court.

In each case, I paid the lawyer the money, the deal was done, we were all happy. The real estate lawyer I literally found in the Yellow Pages (pre-net days).

I worked for a law firm that did patent/trademark law and the name partners billed at $400/hr. (1990s) When a client might complain about the money, the lead name partner was fond of saying that you could pay a younger attorney less per hour, but they were learning the trade on your nickel. He might charge more per hour, but he’d cost you less by knowing more and getting to what you wanted in less time.

With the way publishing is changing, I think it has to be recognized that the position of Agent is untenable. Unless you produce multiple big money books a year, you have to accept that the publisher/agent relationship is more mutually beneficial than any writer/agent arrangement. Even assuming your personal agent understood contracts like a lawyer, what’s the upside for them to balk at terms that aren’t in your best interest?

If you’re in it for the vanity of having a Big Six imprint on your book, that’s one thing. Admit it, get it out of your system and join the 21st century.

I wish I could show this to some friends. Just last night one was telling me how she’s finishing the third revision of the book she’s going to shop to agents. The best part was that the agents were coming to her. I wanted to shake her (gently) and tell her not to do it. Because I especially don’t trust agents who go looking for clients. But I know that she’s so stuck with the trad pub mindset, like the other authors she knows, that she wouldn’t hear me anyway.

Thank you, Kris, for telling the truth, even if lots of people won’t listen.

I need to say two things. First, Teri Babcock hit the nail on the head by saying it’s an emotional reliance because we want to feel we have someone in our corner. And second, I adore that picture you have at the very top. “Look at me, Mommy! I’m a literary agent!!!”

“There is no reason to hire an agent to represent your work in 2016. None. No reason at all.”

I’m really looking forward to the time I can make this statement to people I know and not have them look at me like I’m having crazy-time.
I think it’s coming, thanks largely to you, Kris, and Dean, Laura Resnick… I don’t know if there’s anyone else besides you three who have been standing up in public, naming truths and willing to take the hits for doing so. Thank you, Kris.

I think a lot of writers who have agents, probably most, are not being honest with themselves about why they ‘need’ one. They tell themselves its for business reasons, but it isn’t.
The real reasons are emotional, and therefore so much harder to admit to. And I think that those emotional wants are why people can’t hear the logic and truth being named in discussions about agents.

They may tell themselves they need that agent for business reasons. But really, having an agent makes people feel validated and important.
A total stranger has said that they believe in them and their work. If you’ve always struggled with believing your work isn’t good enough, that feeling of external validation is like crack.
And a lot of people would rather lie to themselves than face the reality that their agent is actually doing harm to their sales, finances, and career.

And I know many, many lawyers. The majority are personable, thoughtful, and integrous, and they have a great sense of humour. They won’t pretend to be your cheerleader, midwife, or friend. But they will have your back when someone tries to sell you a load of shit and call it cotton candy.

Teri – I’ll be the first to admit that I want at least one book published traditionally, which to me means I need an agent (though I will look through the blog for those other ways to get my manuscript out there). I have no problem with self-publishing most of what i’m writing, but even (or especially, I suppose) in my own family it’s seen as something akin to scrawling on a Big Chief tablet, so I want the validation of the whole agent/publisher thing. Ah well.

Since you’re not a lawyer and never worked at a law firm, allow me to correct you on a point or two.

If in a divorce, the parties really are just trying to work out a few details, it’s often most cost-effective for a great big law firm to rely on the new meat to do the job. Believe me, I speak from experience as a lawyer (no longer in practice, thank God) who worked for a private firm long enough to know that it wasn’t my kind of thing.

Young lawyers at law firms are often thrown into cases that seem simple and easy for the big guns to handle.

They also tend to “carry the bags” for the big guns in the really serious situations, like a possibly contentious deposition or a big case going to trial.

Long story short: the notion that a lawyer would be disbarred for using a young associate to handle an uncontested divorce is just ridiculous. Sorry, but it is.

I do agree, however, that having a lawyer involved when it comes signing a contract is essential!

When Bill Gates was doing the deal with IBM for the DOS operating software than led to the PC and his billions, he put in three letters before exclusive licence: non. Which meant he could sell DOS to anyone, and he did.

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